Tips from the Austin Appellate Bench for You

Third Court of Appeals Justice Jim Moseley gives you tips for persuasive briefs here.

Defendant Not Told Emphatically of the Danger of Bad Immigration Consequences Reversed

Alien takes deferred adjudication for assault family violence and violation of a protective order, gets adjudicated, gets processed for removal after his sentence is over. Alien says that he never would have pleaded guilty or no contest if he had known the plea was going to get him deported, and files habeas. Trial counsel says that he did not recall if he had advised the alien about the immigration consequences of his plea and that it was not his usual practice to do so. The plea paperwork warns that a plea may lead to removal, etc. Trial court refused habeas. Texas's First Court of Appeals in Houston held on that record that the alien's plea was involuntary and granted the relief.
The alien filed one habeas petition for each conviction; the opinions as to each are identical. The style of the case is Enyong v. State, Nos. 01-11-00943-CR and 01-11-00944-CR, (Tex. App.--Houston [1st Dist.] Apr. 26, 2012) (orig. proceedings).
The court seemed to feel bound by a prior opinion of theirs: Ex parte Tanklevskaya, No. 01-10-00627-CR, (Tex. App.--Houston [1st Dist.] 2011) (orig. proceeding), otherwise, I don't think that they would have ruled that same way, after all, the admonitions of the plea give notice of the possibility of deportation, etc. The worst that can be said of the written notices are that instead of saying that bad immigration consequences are almost certain to come from taking the plea, it merely says that those consequences may come.

Don't Be This Guy

Bad briefs will get you in trouble. To find out how bad, look here. Thanks to the ABA Journal for this info.

Habeas Corpus in a Texas State Appellate Court

I can't think of any exceptions to the rule that you cannot get a writ of habeas corpus in a Texas state appellate court until you have first sought one in a Texas state trial court. Cf. Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967) (orig. proceeding). An appellate court does not have the capacity to make a trial record, so if you want habeas relief you have to start where a record can be made: your trial court. And remember the AEDPA clock is running from the time your trial judgment is final (not counting the times that appeals toll the finality of the judgment), and the total time you have for all your habeases is one year.
So don't start in the appellate court, bubele.

Texas Court of Criminal Appeals Overturns Mitigation Expert Strike

The Texas Court of Criminal Appeals overturned the punishment phase of a capital murder trial because the district court excluded the testimony of a criminal justice professor who would have testified that the defendant's responsibility was lessened and that he was less of a future danger because an older woman groomed him for a sexual relationship for approximately five years before the crime. It found that Dr. Donna Vandiver qualified as an expert on female sex offenders, that her testimony would assist the jury in determining Christian Olsen's moral responsibility for the crime and the likelihood that he would be a danger in the future, and that her testimony would have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The erroneous exclusion of constitutionally relevant mitigating evidence offered by a defendant facing a possible death sentence requires reversal unless beyond a reasonable doubt it did not contribute to the punishment.
The district court thought that the opinion to be offered was psychological, and Vandiver admitted that she wasn't a psychologist. Vandiver's testimony was the best evidence that the defense had that Olsen shouldn't get a lethal injection.
I understand that one of Olsen's lawyers was Billy Carter. The error in the case seemed particularly well preserved.
Michael E. Keasler wrote the opinion for the CCA. Presiding Judge Sharon Keller concurred, explaining why she thought that this exclusion-of-evidence issue, normally not error of constitutional magnitude, was such in this case. Judge Lawrence E. Meyers dissented without opinion.
In short, it's easier to get a mitigation expert into a capital trial than it is other kinds of experts in other cases.
Thanks to CCA staffer Michael Falkenberg for correcting an error in an earlier edition of this post.

Worst Appellate Petition Ever

No blog about courts and writing can ignore what is, to my recollection, the worst appellate petition I have ever skimmed: Warren Jeffs's petition for discretionary review to the Texas Court of Criminal Appeals (after he basically skipped Austin's Third Court of Appeals).  Taking the claims of the brief at face value, an omniscient god would address a revelation to the proper court, and would otherwise be fluent. The Apostle Paul did better. Compare Acts 25:11b-12. An omnipotent god would just direct a whirlwind at the Powledge Unit, rather than directing a whirlwind judgment at the Judges of the Texas Court of Criminal Appeals. Compare Acts 16:26. Thanks to Lindsey Whitehurst, polygamy blogger of the Salt Lake Tribune. Hey old guys, this is not an effective way to have sex with extremely young girls in Texas.

Some Things Not to Say before the Bench or the Jury Box

A very good short piece on things not to say in hearings, trials or appellate oral arguments is here. "Briefly" and "Just one more question" can make factfinders, particularly jurors, loathe you.

Where Does an Appeal of the Board of Immigration Appeals Go to?

Let say that your client wants to appeal a ruling of an immigration judge. The appeal in that case is commonly to the Board of Immigration Appeals in Virginia, and the appeal from there is commonly directly to a United States Circuit Court of Appeals. The world "commonly" here is important; the rules about what is or is not appealable are complicated, just understand that ordinarily when a person is fighting a removal order, one normally goes from the BIA straight to an appeals court, bypassing a judicial-branch federal trial court entirely.

A Guilty Plea Has to Be Taken at the Real Courthouse

Congratulations to my friend Roger Donley, primary spirit behind this vindication of a defendant's right to a public trial. I used to be the prison public defender that served that county, so I am familiar with the judge, the prosecutor and the prison-chapel courtroom in the case. I found out that this decision had come down from the prestigious national blawg (law blog) the Volokh Conspiracy. Way to go, Roger, and way to go Judges Hervey, Price, Womack, Johnson, Keasler, Cochran, and Alcala. Full disclosure: Roger let me review the brief just before he sent it in, but by the time I got it, it was too late to make any substantive changes to it, and. of course, given that it was written by Roger, it was plenty good enough. I was deeply honored that he was willing to let me to give it the once over.

What did the Texas Court of Criminal Appeals do? It did not allow a trial to be held in a prison chapel, a place where it was damned difficult for the public to get in, where prison officials could pretty much keep any member of the public out that they did not want in, and where children and people recently released from the prison couldn't get in at all. The defendant moved the trial court to have his trial at the county seat of Jones County: Anson. The trial court refused, and the defendant pleaded guilty, subject to his pretrial motions. The Eleventh Court of Appeals in Eastland affirmed, basically holding that since it could not categorically say that more than a handful of members of the public were formally barred from the prison-chapel courtroom, that the chapel courtroom was public enough. The defendant had also argued that the chapel courtroom violated the federal and state religious freedom guarantees, an argument that the Eastlanders had no truck with, and which the CCA, in the end, did not take up.

CCA Presiding Judge Sharon Keller concurred, apparently without opinion. CCA Judge Larry Meyers dissented without opinion.

I think that the windy desolation of the West Texas grassland where the French Robertson Unit is is majestic. The old-fashioned stone-and-iron Jones County courthouse is picturesque. The trial judge, Brooks H. Hagler, is a charming, pleasant man, who does not, as many trial judges do, treat defense counsel with loathing. The great challenge of his job is that he and Jones County do not really have the taxbase to pay all the costs that running a justice system entails when a county has a prison in it. The county is too small and too poor. The people who thought of the prison-chapel courtroom were thrilled that they could take care of the prison's criminal caseload without having to pay for the prisoners who pleaded guilty to be transported to and from Anson. But trials have to be open to the public, even for guilty pleas, so that is is highly unlikely that any Court of Star Chamber could be set up in Abilene.

How and When to Challenge the Admissibility of an Expert's Opinion at Trial

An extremely good blog post on how to impeach an expert witness of the kind most lawyers will encounter- the somewhat credentialed person who no longer is fully engaged in his or her field, but whose business is, generally, limited to testifying at trials is here.
They don't talk about the appellate angle in attacking experts. Professional testifiers are often persuasive to juries and trial judges, but are much less impressive when judged on a cold record. I practice in southeast Texas. In the First, Ninth, and Fourteenth Courts of Appeals and in the Texas Supreme Court a personal injury plaintiff's expert is guilty until proven innocent, so defense counsel in such a case should practically always make a Daubert/Robinson challenge to the adversary's expert. In a sexually-violent-predator civil-commitment case, Judge Seiler will be very open to an attack on the defense expert, less so for his appellate court, the Ninth, in Beaumont, as I've written about elsewhere on this blog.

Texas Court of Criminal Appeals Rules MySpace Pages Self-Authenticating

The Texas Court of Criminal Appeals has ruled that a murder defendant's MySpace pages were self-authenticating, helping to give guidance as to how to prove up social media content. This story comes from Lexology, a website primarily serving corporate counsel here in the U.S. and in foreign countries.

The Strange State Appellate Court System of Houston, Texas

In Texas, not counting municipal courts or justice-of-the-peace courts, there are state trial courts, intermediate courts of appeal, and highest appellate courts. The highest courts are the Supreme Court and the Court of Criminal Appeals, which have already been discussed here. Of the fourteen intermediate courts of appeals, two of them- the First Court of  Appeals and the Fourteenth are in the same place, Houston, and cover the same geographical area:  Austin County, Brazoria County, Chambers County, Colorado County, Fort Bend County, Grimes County, Harris County, Waller County and Washington County. They are presently the only ones which cover any common territory. The Woodlands and Conroe are in Montgomery County which in the Ninth Supreme Judicial District which court meets in Beaumont. Cases are alternated between the First and Fourteenth Court of Appeals. In theory, this could lead to a trial court's being bound by conflicting authority as between the two courts.
I also think that this Houston problem is one of the reasons why notices of appeal in Texas are filed in the trial courts. This allows trial court staff to figure out whether an appeal should go to the First Court or the Fourteenth.
For a time in the history of Texas, Galveston was the most important city, and the First Court of Appeals was established there. Later, when Houston grew so much, it was given the Fourteenth Court and both courts have sat in the same buildings in Houston since then. Formerly in the same downtown Houston building as South Texas College of Law, now they share the beautiful old domed Harris County courthouse.
Another interesting artifact of that time is the Roman Catholic Archdiocese of Galveston-Houston. Galveston gets pride of place because the archdiocese started there, and it is one of the very few religious provinces with a pair of co-cathedrals: one in Galveston and the main one in Houston.

Libertarian Wisdom, from Sharon Keller, of All People

Normally I don't expect nuanced libertarian sensibility from Texas Court of Criminal Appeals Presiding Judge Sharon Keller, but she dissented from a denial to hear a habeas corpus petition challenging part of Texas's improper photography or visual recording statute. From reading the opinion, I bet I know how the brief was written, and, with the benefit of hindsight, I've got some advice for you about what to do if you're in applicant's counsel's position.
David L. Hudson, Jr. of the First Amendment Center at Vanderbilt University and the Newseum wrote about this dissent. He explained that Collins Nyabwa was arrested and convicted for taking photos up the skirts of women in a store. Nyabwa had applied for a pretrial writ of habeas corpus, arguing that the part of the statute he was charged under was contrary to the free speech guarantees of the First Amendment to the U.S. Constitution and article 1, section 8 of the Texas Constitution, and was overbroad and vague.
The trial court denied him; Texas's Fourteenth Court of Appeals in Houston denied him; and Texas's Court of Criminal Appeals denied him. Presiding Judge Keller, though, dissented from the denial with an opinion (Judge Laurence Meyers dissented from the denial without opinion) arguing that the law was sweepingly broad, that it could criminalize photographing or videotaping a fully-clothed person walking down a public street. If such is sexually gratifying to a person, well, those sexual thoughts may be protected by the constitutions.
When one writes a brief in a case like this, the first problem to keep the court from discounting the claim as the ordinary sophistry of the person accused of a crime. One has to write so as to close every escape hatch that could keep the court from having to consider the merits of the claim. It's very difficult. No elected official wants to be accused of having been soft on creepiness (For the record, I think Nyabwa's behavior was creepy.). Being able to deal with this kind of problem, is the bread and butter of criminal defense advocacy.
But good advocates do something extra in situations like this when needing a court to apply unpopular law, and that is to show the court that this case will likely get to a higher court, and when it does, that higher court will make the jurist or jurists look bad by overruling them. Cite to and explain how the higher court will rule. If in a trial court, make your motion look like an appellate brief. If in an intermediate appeals court, have sections of your brief look like an application to be heard in the higher appellate court. From the opinions, it looks to me like the briefs were strong on keeping from being poured out and getting considered, but not so much on showing that the higher court would absolutely be bound to rule in the applicant's favor even if the judge the applicant was in front of did not want to rule in the applicant's favor.

Keep It Short; Have Every Word Tell

This post is about an article in the Texas Lawyer: "Working on the Clock: the Advantages of Timed Trials." It doesn't just give good advice for how to try a case on time limits, but argues that most of the changes advocates have to make are improvements. This appears to be true about timed trials; it is even more true about motion argument and appellate oral argument. Omit needless words. I tell you, on the day of judgment you will have to give an account for every careless word you utter. Prominent plaintiffs' attorney Mark Lanier's advocacy advice in the piece is particularly good.

Inconsistent Testimony, Recantations Don't Require New Trial

In Duke v. State, No. 06-10-00209-CR (Tex. App.--Texarkana, Mar. 27, 2012) (no pet. h.) the first time that the child told the school counselor that her stepfather touched her genitals, she said that it had happened during horseplay and wrestling. The counselor said that the child's statement exculpated the stepfather. An investigator who interviewed the counselor said that the counselor had inculpated the stepfather. The next month the child told her father that she had been molested. She later told the investigator that the stepfather had penetrated her anus with his penis, but stated after that that he had only touched her buttocks with his penis through her clothing. After that, she recanted to her mother. Further on in time, there was a trial. The child testified that the stepfather had put his penis in her anus. She also stated that the penis was not hard. The stepfather is convicted of indecency by contact and gets a 60-year sentence. After the trial, the child moved back in with her mother, and recanted in a motion for new trial. Around that time, she told the investigator that she had been telling the truth at the trial. Should a new trial be granted?
A motion for new trial based on a recantation must satisfy the following four-part test for newly discovered evidence:
(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
(4) the new evidence is probably true and will probably bring about a different result on another trial.
The decision is within the sound discretion of the trial court.
The trial judge ruled that the new evidence was not probably true, that the child seemed resigned in her testimony at the motion for new trial, and the appeals court would not second-guess the trial judge.

When and in Which Courts Can Post-Conviction Writs of Habeas Corpus Be Sought?

A convict only has one year from the time that the conviction is final to apply for a writ of habeas corpus. This is because of the Antiterrorism and Effective Death Penalty Act of 1996. This rule looks like it is simple, but it's not. Appealing a case tolls the one year period, and deciding when a conviction is really final is sometimes difficult in light of the fact that some appeals courts can choose in their discretion whether or not they are going to hear a case.
After the conviction is final, if the one-year deadline has not passed, the principle of exhaustion of remedies controls which courts will hear a writ application. Generally, if one is convicted in a Texas trial court, one has to apply in the Court of Criminal Appeals, only after that can one then apply in a federal trial court. Contempt judgments and commitments as a sexually violent predator have more steps. State judges, trial and appellate, are politicians, subject to losing elections if they make unpopular rulings. Getting to federal court is where one often gets one's first real chance for relief, since they don't lose their jobs if they make unpopular rulings since they serve for life on good behavior. It means as a practical matter, that it can take years before a defendant can get to a decent forum.

For Northern Metro Houston Legal Researchers

Legal research materials are generally priced for prosperous lawyers, and for people who are not prosperous or not lawyers, they can be hard to come by. Law libraries can help. There is a law library fund for every county in Texas. Every law school has to have a law library, and general public libraries and college libraries often have legal materials. A great deal of my life in the law has been lived north of downtown Houston, Texas, and my knowledge of how to get cost-effective access to these materials is an important part of my professional skills.
There are two fine law libraries in downtown Houston: Harris County Texas Law Library and the Fred Parks Law Library at my alma mater South Texas College of Law.  If you need to get family law materials, go to South Texas: the materials there are much less likely to be damaged, missing or out-of-place because the public uses the materials there so much less than the ones at the County Law Library. Also be aware, it costs money to park near either library, even if you go to South Texas on a Saturday. The County is now closed on Saturday.
I believe that there are some legal materials--state statues, some cases and law reviews-- at University Center in The Woodlands, but it's not a real law library (That's not to say its not a good general college library. It is.).
Going further north, the little jewel hidden in the piney woods is the Montgomery County Texas Law Library. It has been good for all the time that I have known about it, but under the dynamic leadership of Pris Streightoff, ably supported by Miss Casey, it gets better and better. Open Monday through Friday, 8 a.m. through 5 p.m. every day that the County is working, it's right across the street from the courthouse (Under ordinary circumstances. park in the parking structure behind the building the library is in.). Between their printed materials and their computer access they have just about everything a legal researcher would ever need (The only exceptions I know about are that they lack an up-to-date Bluebook and Texas Rules of Form.). Ms. Streighthoff was telling me about all the things that they have on HeinOnline: United States Codes and nearly every law review you ever heard of, congressional legislative histories and much, much more. They'll have WiFi soon.

A Book that Tells You how It Was Done

The Houston Chronicle reviewed Flagrant Conduct: The Story of Lawrence v. Texas by University of Minnesota Law School professor Dale Carpenter. It seems like a useful study of a changing of an interpretation of the United States Constitution by the U.S. Supreme Court.
Some observations:
1. It is common that the facts of a case like this are not very important. It is entirely possible that the defendants in the case were not engaging in sex at all.
2. A big appellate case usually doesn't develop randomly out of the slush pile. Lambda Legal Defense Fund had been looking for a case like this for years.
3. The U.S. Supremes worried little or not at all about reversing the precedent of Bowers v. Hardwick. Appellate justices wax eloquent on the importance of issue preclusion, but "five votes can do anything" at the Supreme Court.
4. State appellate justices can take their careers in their hands when they decide a case. This case almost ended the career of Texas Fourteenth Court of Appeals Justice John Anderson.
This book would bear comparison to Gideon's Trumpet by Anthony Lewis.